Filed 7/27/26 N.E. v. City of Petaluma CA1/4
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
N.E., a Minor, etc.,
Plaintiff and Appellant, A172167
v. (Sonoma County
CITY OF PETALUMA et al., Super. Ct. No. SCV273886)
Defendants and Respondents.
Plaintiff N.E., a minor, by and through her guardian ad litem Rebecca
Pederson, filed this wrongful death suit against the City of Petaluma (City)
and the Sonoma-Marin Area Rail Transit (SMART), after her father was
killed in a motorcycle accident near a SMART train crossing in Petaluma,
California. In her operative second amended complaint, N.E. alleges the
same claim against both defendants for maintaining a dangerous condition
of public property. She alleges the road conditions made it difficult for
drivers to detect the median because it had an unmarked and unlit 8-inch
median, as well as elevation variances and a curvature in the road.
Sustaining demurrers filed by the City and by SMART, the court
found that N.E.’s allegations were too general. The court found that she
failed to specify the precise defects in the road, the manner in which the
alleged defects created a safety hazard, and whether these conditions posed
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a substantial risk to drivers exercising due care. It also noted that N.E.
failed to plead facts sufficient to establish a “hidden trap” or “peculiar
condition” that would render defendants liable for a failure to add warning
markings or light the roadway, per Government Code sections 830.4 and
830.8. Because N.E. had tried and failed to amend her complaint on two
previous occasions, the court sustained the demurrers with prejudice.
On appeal, N.E. argues that the trial court erred. She contends she
has pled enough specifics to support a viable claim based on the road
median and curvature to establish a dangerous condition of public property,
as well as a “hidden trap” and “peculiar condition” that would impose a duty
on the defendants to provide markings and lighting under Government Code
sections 830.4 and 830.8. She argues in the alternative that she should be
given another opportunity to amend her complaint, and claims there are
more specifics she can add. Respondents, for their part, restate the court’s
reasoning and urge unconditional affirmance.
We agree that the demurrers were properly sustained, but will
remand so that N.E. may seek to cure the defects in her complaint. Given
the heightened pleading standard for claims alleged under the Government
Claims Act (Gov. Code, § 810 et seq.) (previously known as the Tort Claims
Act), N.E. failed to plead enough specifics for viable claims of a dangerous
condition of public property (Gov. Code, § 835) or a “hidden trap” and
“peculiar condition” that would defeat defendants’ immunity. But we
disagree that the demurrer was properly sustained without leave to amend.
There is no categorical rule restricting the number of times a plaintiff may
amend a complaint. Since N.E. plausibly argues she can add further details
that may save her complaint, she should be given another chance to replead.
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Accordingly, while we will affirm the order sustaining the demurrers,
we will remand with directions that the trial court grant N.E. a third
opportunity to amend her complaint.
I. BACKGROUND
In June 2022, N.E.’s father was riding a motorcycle in Petaluma,
California when he struck a concrete roadway median in the vicinity of a
train crossing controlled by SMART. He sustained fatal injuries. Following
the crash, N.E. brought a wrongful death suit against two public entities,
the City and SMART, alleging maintenance of a dangerous condition of
public property.
Each defendant demurred three times, arguing that the complaint as
originally filled and as amended twice was legally insufficient. Sustaining
these demurrers, the trial court concluded that N.E. failed to explain the
specific defects in the roadway complained of and how such defects were
hazardous. But twice it granted N.E. an opportunity to amend her
complaint. After granting leave to amend a second time, the court noted
that “since a demurrer ha[d] already been sustained to this cause of action
in the past and [the] Plaintiff ha[d] never explained to the Court how the
defects could be cured by amendment, this is the final time [it would] grant
leave to amend.”
A. Allegations of the Second Amended Complaint
In her second amended complaint, N.E. largely restated allegations
from her prior complaints. She pleaded a dangerous condition of public
property, alleging the roadway had a “dangerous” curvature, a “dangerous”
and “unmarked” median and concrete barrier, and “inadequate” warnings,
lighting, markings, and signage. As in her first amended complaint, she
restated that the “physical characteristics” of the roadway “created vision
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limitations, obscure elevation variances, and otherwise constituted hidden
traps . . . .”
But some allegations were new. She alleged that the “8-inch” median
was “dangerous and physically defective in design, placement, and due to its
physically deteriorated condition.” For support, she stated the median was
struck by other vehicles, “as evidenced by numerous wheel strike marks and
damage.” She then stated the median was dangerous, because there was an
“absence of lighting in the area” and a lack of reflective markings and
signage to warn motorists of the median. She alleged that the median was
built and designed with warnings, but the warnings were broken and/or
removed prior to the accident.
B. Trial Court’s Rulings
In the order sustaining the third round of demurrers—the order now
under review—the trial court began by explaining that “ ‘[t]he limited and
statutory nature of government liability mandates that claims against
public entities be specifically pleaded.’ (Brenner v. City of El Cajon (2003)
113 Cal.App.4th 434, 439 [(Brenner)].)” (See Gov. Code, §§ 815, 835.)
Applying this heightened pleading standard, the court found many of N.E.’s
allegations to be too “general,” “unsupported by facts,” and “conclusory.” For
instance, the court held that N.E.’s allegations of a “dangerous curvature,” a
“dangerous median,” “vision limitations, obscure elevation variances, and
. . . hidden traps” were all too “generally pleaded” and that N.E. failed to
explain the manner in which those alleged defects created an undue safety
hazard.
Specifically, with respect to the center median, the court explained
that the alleged wheel strike marks on the median and the missing
reflective markings were not sufficient to support a viable claim for a
dangerous condition of public property or that they established a “hidden
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trap” or “peculiar condition” that would obligate both defendants to provide
warning marks or lighting. Wheel strike marks alone, without any
indication the median was “physically deteriorated” or improperly located or
designed, do not establish that the median was in a dangerous condition, the
court stated.
As for the alleged lack of lighting and warning markers, the court
noted that public entities have no duty to light their streets and are immune
from claims alleging failure to provide warning signals and markings under
Government Code sections 830.4 and 830.8. None of N.E.’s factual
allegations, the court concluded, amounted to a “peculiar condition” or
“hidden trap” that would defeat this immunity.
Summing up, the court announced it would once again sustain the
defendants’ demurrers, but this time without leave to amend. It noted that
since N.E. had already received two opportunities to amend her complaint to
state a legally viable cause of action and each time had failed to explain how
the alleged negligence cause of action could be revised to cure identified
defects, leave to amend would be denied.
This timely appeal from the ensuing judgment followed.
II. DISCUSSION
A. Legal Standards
On appeal, we review de novo the trial court’s decision to sustain both
defendants’ demurrers to N.E.’s complaint. (Sproul v. Vallee (2025) 116
Cal.App.5th 285, 293.) A complaint passes muster when it sets forth facts
sufficient to state a cause of action under any legal theory. (Id. at p. 292.)
We interpret a complaint reasonably, reading its parts in context and as a
whole. (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126.) While
properly pleaded material facts are assumed to be true, contentions,
deductions, or conclusions of fact or law are not. (Ibid.)
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Under the Government Claims Act, public entities are not liable for
injury except as provided by statute. (Gov. Code, § 815; see Williams v.
Horvath (1976) 16 Cal.3d 834, 838 [noting the Government Claims Act
confines liability for public entities to “rigidly delineated circumstances”].)
For claims alleging maintenance of a dangerous condition of public property,
Government Code section 835 provides the sole statutory avenue for
imposing liability on public entities. (Zelig v. County of Los Angeles, supra,
27 Cal.4th at p. 1133.)
Under Government Code section 835, a plaintiff must plead four
elements to state a cause of action: (1) the property was in a dangerous
condition; (2) the injuries were proximately caused by the dangerous
condition; (3) the dangerous condition created a reasonably foreseeable risk,
even with the exercise of due care; and (4) the government entity had actual
or constructive notice sufficient to have taken measures to protect against
the dangerous condition. Crucially, the occurrence of an accident resulting
in injury is not, in and of itself, evidence that a piece of public property was
in a dangerous condition. (Gov. Code, § 830.5, subd (a).)
Here, only the first element, the existence of a dangerous condition, is
contested. A condition of public property is dangerous when it creates “a
substantial (as distinguished from a minor, trivial, or insignificant) risk of
injury when such property . . . is used with due care in a manner in which it
is reasonably foreseeable that it will be used.” (Gov. Code, § 830, subd. (a);
Brenner, supra, 113 Cal.App.4th at p. 439.)
Given the limited and statutory nature of government liability, a
plaintiff must plead a dangerous condition with specificity. (Susman v. City
of Los Angeles (1969) 269 Cal.App.2d 803, 809.) In other words, their
pleadings must include factual allegations identifying the particular
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manner in which the property was defective or dangerous. (Brenner, supra,
113 Cal.App.4th at p. 439.) Pleadings cannot rely on conclusory or
generalized allegations that a dangerous condition existed. (Ibid.)
While the existence of a dangerous condition is ordinarily a question
of fact, it can be decided as a matter of law if reasonable minds can arrive at
only one conclusion. (Bonanno v. Central Contra Costa Transit Authority
(2003) 30 Cal.4th 139, 148 (Bonanno).) Accordingly, if the facts pleaded by
the plaintiff cannot support the finding of the existence of a dangerous
condition, a court may sustain a demurrer to a complaint. (Brenner, supra,
113 Cal.App.4th at p. 440.)
B. The Second Amended Complaint Does Not Allege Facts
Sufficient To Establish a Dangerous Condition of Public
Property
N.E. argues that her second amended complaint pleads sufficient
factual allegations to establish a dangerous condition of public property.
She highlights the following allegations that she contends meet the
requisite specificity standard: (1) a dangerous curvature and elevation
variances that made it difficult for motorists to detect the presence of a
median, (2) the presence of a low-level center median, and (3) the median’s
lack of markings and lighting.
The defendants argue that these allegations are still too general and
lack factual particulars showing dangerousness. They argue that under the
heightened pleadings standard, N.E. has now repeatedly failed to meet her
burden of specifying the manner in which the road conditions are hazardous
and should not be given another opportunity to amend.
As explained below in further detail, we agree with the defendants
that N.E.’s allegations concerning the road’s curvature, median, and lack of
warnings and lighting remain insufficient to support a dangerous condition
7
claim, but we agree with N.E. that she is entitled to another chance to
amend her complaint.
1. Dangerous Curve
First, N.E. alleges that the “physical characteristics of the aforesaid
roadway created vision limitations, obscure elevation variances, and
otherwise constituted hidden traps that [were] not reasonably apparent to
motorists.” But curves and elevation variances are not per se dangerous.
(See Mittenhuber v. City of Redondo Beach (1983) 142 Cal.App.3d 1, 7
[concluding that it would be unduly burdensome to hold municipalities
strictly “liable for the natural topography of the land”]; see also Mixon v.
Pacific Gas & Electric Co. (2012) 207 Cal.App.4th 124, 137 [finding that not
all “ ‘ “dip[s] or hollow[s]” ’ ” obscure visibility and create hazards that
violate state standards] (Mixon).)
Since these conditions do not establish danger as a matter of law, the
defendants correctly argue that N.E. must allege specific, factual details
describing the manner in which the road conditions are hazardous.
(Brenner, supra, 113 Cal.App.4th at p. 439; People ex rel. Department of
Transportation v. Superior Court (1992) 5 Cal.App.4th 1480, 1486
(Verdeja).) The defendants cite Verdeja, which affirms this rule.
In Verdeja, the plaintiffs alleged that a dirt median constituted a
dangerous condition of public property. (Verdeja, supra, 5 Cal.App.4th at
p. 1483.) In their complaint, they alleged that the dirt median was
dangerous because a vehicle “crossed over the dirt center divider and struck
[their] vehicle head-on.” (Ibid.) The plaintiffs argued that this allegation
alone showed that the dirt median proximately caused their injury and was
dangerous; however, the court disagreed, finding their complaint
insufficient to state a cause of action. (Id. at pp. 1485–1486.) The court
8
reasoned that the plaintiffs’ allegation lacked specificity, such that it was
unclear whether the dirt median and not other factors, like a wet or slick
road, caused the plaintiffs’ injury. (Ibid.) The plaintiffs therefore had an
obligation to provide the defendants more information, specifically the
“manner” in which the dirt median was hazardous and “the nature of the
relationship between the condition of the median and the injuries suffered
by real parties.” (Id. at p. 1486.) The court explained that these details
were required so that the defendant could fully grasp the plaintiffs’ theory of
relief and marshal an appropriate defense. (Ibid.)
Like the plaintiffs’ allegations in Verdeja, here, N.E.’s allegations are
vague and lack the factual detail necessary to plead a cause of action. She
asserts the elevation variances were “obscure” and that there were “vision
limitations” but never explains the “manner” in which the road’s curvature
or elevation variances impaired visibility. Moreover, just as the court in
Verdeja found multiple plausible explanations for the plaintiffs’ accident
unrelated to the median, N.E.’s allegations leave open other plausible
explanations for her father’s injury: he was driving at night, his tires may
have been worn, or he may have been driving too fast for conditions. N.E.’s
second amended complaint leaves open these possibilities, and more.
Without greater specificity, there is no way to connect the road’s curvature
or elevation variances to the cause of the crash, which deprives defendants
of enough notice of the claim against them to mount a defense. (Verdeja,
supra, 5 Cal.App.4th at pp. 1485–1486.)
N.E.’s allegations also fail to establish that the road conditions posed
a “substantial risk” of injury to motorists exercising “due care.” (Gov. Code,
§ 830, subd. (a).) The defendants cite two cases, Brenner, supra, 113
Cal.App.4th 434 and Cerna v. City of Oakland (2008) 161 Cal.App.4th 1340
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(Cerna), to illustrate the requirement they rely upon here. In Brenner, the
plaintiff alleged heavy pedestrian and vehicular traffic near a multi-lane
road to argue that a road was in a dangerous condition. (Brenner, at p. 440.)
Nonetheless, the court found her allegations insufficient because those
conditions were common and could not independently establish a
“substantial” risk to drivers exercising due care. (Ibid.) Similarly, in Cerna,
the court held that a crosswalk painted white instead of yellow did not
constitute a dangerous condition. Since drivers must yield to pedestrians
regardless of marking color, no substantial risk was shown to drivers
exercising due care. (Cerna, at p. 1351.)
Like the plaintiffs in Brenner and Cerna, N.E. fails to plead specific,
factual material that establishes how the road conditions create a
substantial risk of injury for a driver exercising due care. As Brenner and
Cerna illustrate, alleging common road conditions that could make a road
less safe, such as heavy traffic or less visible lane markings, is not enough.
The key question is whether such conditions create a “substantial” risk that
even a driver exercising due care could not reasonably avoid injury. Thus,
even if we take N.E.’s allegations of vision limitations and obscure elevation
variances as true, both features at best establish an elevated risk of harm,
not one that is unusual or “substantial” as to injure a driver exercising due
care.
N.E. contends that Verdeja, Brenner, and Cerna are not applicable
here because they do not “involve a low-lying center median.” We disagree.
All three cases outline a well-established construction of Government Code
section 830 and define what is necessary to plead a dangerous condition of
public property. (Verdeja, supra, 5 Cal.App.4th at pp. 1483–1486; Brenner,
supra, 113 Cal.App.4th at pp. 439–440; Cerna, supra, 161 Cal.App.4th at
10
pp. 1346–1348.) That standard applies regardless of the road features at
issue.
N.E. also argues that Salas v. Department of Transportation (2011)
198 Cal.App.4th 1058 and Bonanno, supra, 30 Cal.4th 139, support her
position because they articulate “broad standards” for pleadings. But Salas
applies the standard put forth in Brenner and Cerna that a plaintiff must
show a condition of property poses a substantial risk of injury even when
used with due care, and comes to a different conclusion on the facts
presented there. (Salas, at p. 1071 [finding that a crosswalk, which lacked
traffic controls, was not in a dangerous condition, because it was not shown
that the crosswalk created a substantial risk of injury when used with due
care].)
And Bonanno is simply off-point. There, our Supreme Court resolved
a separate question: whether the location of a public property could be
deemed dangerous because users had to cross a separately dangerous
crosswalk to reach it and not whether a physical condition of property
independently constitutes a dangerous condition. (Bonanno, supra, 30
Cal.4th at pp. 146–147.) Thus, affirming the rules laid out in Verdeja,
Brenner, and Cerna, we find that N.E. did not plead enough factual material
to allege a dangerous condition of public property based on the road’s
curvature and variances alone.
2. Dangerous Median
N.E. alleges that the median “was dangerous and physically defective
in design, placement, and due to its physically deteriorated condition.” She
furthers that the median had been struck by “numerous vehicles previously
as evidenced by numerous wheel strike marks and damage.” Again, these
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allegations are insufficient for the same reasons as her curvature
allegations.
First, hard, fixed objects on a roadway, such as medians, do not
establish a dangerous condition as a matter of law. (Cordova v. City of Los
Angeles (2015) 61 Cal.4th 1099, 1111.) Second, N.E’s allegations are too
general. As discussed above, N.E. bears the burden of pleading her claim
with specificity, and she must allege facts showing the manner in which the
condition was defective or dangerous and how that condition proximately
caused the injuries sustained. (Verdeja, supra, 5 Cal.App.4th at pp. 1483–
1486.) Here, N.E. states only that this particular median was “physically
defective” or “deteriorated” without identifying any specific qualities of the
median that could endanger drivers.
While N.E. does allege there were “wheel strike marks” and “damage,”
neither is pleaded with particularity. A median may bear such marks and
such damage while remaining functional; moreover, those marks may reflect
the conduct of reckless drivers rather than any defect in the median’s design
or placement. Absent more particular facts, these allegations do not permit
the inference that the median, rather than other factors, proximately caused
N.E.’s father’s injury, as was the case with the insufficient allegations in
Verdeja. (Verdeja, supra, 5 Cal.App.4th at pp. 1483–1486 [finding that the
plaintiffs’ allegations were too broad, permitting inferences that other
factors and not the dangerous condition alleged proximately caused the
plaintiffs’ injury].)
Finally, N.E. pleads no facts establishing that the median posed a
substantial risk of injury to motorists exercising due care. In Brenner, the
court held that high pedestrian and vehicular traffic, as common conditions,
could not independently support a dangerous condition claim. (Brenner,
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supra, 113 Cal.App.4th at p. 440.) Medians are equally common road
features. N.E. therefore must allege additional facts demonstrating that
this particular median was uniquely situated as to pose a substantial, as
opposed to a slight or trivial, danger to drivers exercising due care. (Ibid.)
3. Failure to Warn of the Median
Third, N.E. alleges the roadway was in a dangerous condition because
the median lacked warnings in the form of reflective markers and signage.
She alleges that, while the median was built and designed with markings,
they were broken and removed prior to the accident and never restored.
This allegation also fails as a matter of law.
As the City correctly points out, Government Code sections 830.4 and
830.8 grant public entities immunity for a failure to provide traffic control
signals (Gov. Code, § 830.4) and a failure to provide warnings signs,
markings, and devices (Gov. Code, § 830.8). Rejecting a claim against a city
for failure to provide “traffic signals, stop signs, semaphores, or other traffic
control devices” (Perry v. City of Santa Monica (1955) 130 Cal.App.2d 370,
371), an appellate panel observed long ago that that public entities are not
insurers of traveler safety. (Id. at p. 372.) They are not required to
implement every conceivable precaution, only those necessary to keep
streets in a reasonably safe condition. (Ibid.)
That immunity is not absolute, however. A duty to provide warnings
will arise when underlying road conditions constitute a hidden trap, “a
dangerous condition which endanger[s] the safe movement of traffic and
which would not be reasonably apparent to, and would not have been
anticipated by, a person exercising due care.” (Gov. Code, § 830.8;
Washington v. City and County of San Francisco (1990) 219 Cal.App.3d
1531, 1535–1537.) The trap must exist independent of an absence of
13
warning signs and must be grounded in other road conditions. (Mixon,
supra, 207 Cal.App.4th at p. 135.)
N.E. argues that her allegations of an 8-inch center median, elevation
variances, and wheel strike marks sufficiently establish a hidden trap, but
that is not so. Washington, which N.E. relies on for support, illustrates why.
There, the court found a hidden trap where specific physical factors—metal
pillars and shadows cast by an overhead freeway—created vision limitations
for all drivers, even those exercising due care. (Washington v. City and
County of San Francisco, supra, 219 Cal.App.3d at p. 1535.) Unlike the
allegations in Washington, however, N.E.’s alleged defects are neither
specifically pleaded nor logically correlated with vision limitations. Indeed,
medians are objectively visible road features. Her allegations of elevation
variances are vague, and the wheel strike marks show only that other
drivers have contacted the median, not that the hazard was hidden. In fact,
drivers may strike medians for any number of reasons unrelated to
visibility. Without more, N.E. has not established a hidden trap where a
driver exercising due care would have difficulty avoiding the median.
Further, N.E.’s allegation that the median’s original markings were
broken and never restored does not impose a heightened or special duty on
public entities to restore such markings. In Cerna, the court held that
section 830.4 preserved immunity for public entities, even when they failed
to fix missing or mispositioned warning signs. (Cerna, supra, 161
Cal.App.4th at pp. 1348, 1351–1352.) The court explained that the absence
of warnings “is not a physical characteristic” of a roadway and “not
actionable as a dangerous condition.” (Id. at p. 1352.) For our case here, the
fact that the median once had markings does not impose on defendants a
duty to restore them. Thus, because N.E. has not identified physical
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features of the roadway that would independently create a hidden trap, her
allegations do not pierce the immunity defendants have under Government
Code sections 830.4 and 830.8.
4. Failure to Light the Median
Finally, N.E. alleges a failure to provide street lighting, claiming that
inadequate illumination of the median contributed to reduced visibility.
This allegation likewise fails.
As both defendants note, a public entity has no duty to light its streets
absent a “ ‘peculiar condition’ ” rendering lighting necessary for safe travel.
(Mixon, supra, 207 Cal.App.4th at p. 133.) Absent a statutory provision
establishing such a duty, a public entity’s failure to light its streets “is not
actionable negligence and will not render it liable in damages to a traveler
who is injured solely by reason thereof.” (40 Am.Jur.2d (2026) Highways,
Streets, and Bridges, § 342; Mixon, supra, 207 Cal.App.4th at p. 133.)
N.E. claims that the presence of a low-lying 8-inch median is itself a
“ ‘peculiar condition’ ” and cites Mixon for support. But Mixon only confirms
that her allegations fall short. There, the plaintiff presented evidence that
an intersection had visibility challenges, showing how its lighting, relative
to surrounding well-lit areas, produced a “ ‘black hole’ ” effect that would
make it difficult to perceive pedestrians. (Mixon, supra, 207 Cal.App.4th at
p. 134.) Despite this evidence, the court found no peculiar condition, noting
that the gradations in lighting intensity here were not “unlike many urban
areas.” (Ibid.)
Here, N.E.’s allegations are much sparser than the allegations in
Mixon. She points only to the existence of a median and wheel strike
marks, neither of which naturally speak to a lack of visibility in the
roadway. Just as the court in Mixon found the lighting configuration in the
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intersection unremarkable, here, the dangerous condition in question—a
median—is a common roadway feature, and N.E. pleaded no facts showing
that the median here is unusually difficult to perceive or requires additional
lighting for safe travel. If the plaintiffs in Mixon were unable to establish a
“ ‘peculiar condition’ ” necessitating lighting for a “ ‘black hole’ ” intersection,
N.E. certainly cannot do so by simply alleging the existence of a road
median.
C. We Exercise Our Discretion on Appeal To Determine That N.E.
Should Be Given a Further Opportunity To Amend Her
Complaint Based on Representations She Has Made About
Further Revisions That May Be Sufficient To Survive Demurrer
The trial court denied N.E. a third opportunity to amend her
complaint explaining that she had been given two prior opportunities to
amend in response to the court’s specific comments about the shortcomings
in her complaint and first amended complaint. The opportunity to cure,
however, is not governed by a “ ‘two strikes and you’re out’ ” rule or any
other arbitrary numerical limit. (Morris v. JPMorgan Chase Bank, N.A.
(2022) 78 Cal.App.5th 279, 300.) A plaintiff’s failure to remedy prior
complaints does not preclude the possibility of cure on a subsequent
attempt. (Ibid.) Rather, the relevant question is whether N.E. has shown
how she would amend her complaint and that her proposed amendments
could successfully state a cause of action.
We have discretion to permit such an amendment based on
representations made for the first time on appeal. (Mercury Ins. Co. v.
Pearson (2008) 169 Cal.App.4th 1064, 1072 [“While it is the plaintiff’s
burden to show ‘that the trial court abused its discretion’ and ‘show in what
manner he can amend his complaint and how that amendment will change
the legal effect of his pleading’ [citation], a plaintiff can make ‘such a
showing . . . for the first time to the reviewing court’ [citation].”]; see Code
16
Civ. Proc., § 472c.) We choose to exercise that discretion here. N.E.
represents that, if given the opportunity, she would add allegations
“specifying how the absence of lighting visually impairs the ability to see the
median; specificities on how the elevation variances in the roadway obscure
the median; . . . how the lack of warnings [a]ffect driver’s perception; and
more detailed descriptions of [the] deterioration of said median.”
As underscored earlier, the central deficiency in N.E.’s second
amended complaint is that her allegations remain too general. She has not
specified the physical characteristics of the roadway, the manner in which
those characteristics posed a hazard, or how they created a substantial risk
to drivers exercising due care. (Brenner, supra, 113 Cal.App.4th at pp. 439–
440.) N.E.’s proposed amendments could address these gaps. More detailed
allegations of the elevation variances, the median’s deterioration, and their
effect on driver perception could better illustrate how the road’s conditions
were hazardous to even reasonably careful drivers.
It is certainly true, as the trial court correctly reminded N.E., that
public entities cannot be held liable for maintaining a dangerous condition
of public property based on allegations of a failure to provide street lighting;
a failure to provide street signage or warning signs; or the existence of
curves or elevation changes in a roadway. Absent unusual circumstances,
each of these conditions poses a common hazard motorists can expect to
encounter. But as we read the second amended complaint, N.E. appears to
be attempting to pursue a theory that the various conditions in
combination—none of which, alone, would be sufficient to support her
negligence claim—exacerbated the risk presented by a “deteriorated[,]” low-
lying (8’’ tall) median strip that is unusually difficult to see at night, even
for a motorist or motorcyclist exercising due care.
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Based on N.E.’s representation that she can plead such a theory with
more particularity, we see a reasonable possibility that a third amended
complaint may survive a demurrer. “That the location of a public
improvement or, more broadly, its relationship to its surroundings, may
create dangers to users is by no means a novel idea.” (Bonanno, supra,
30 Cal.4th at p. 149, italics added.) And a variety of conditions, in
combination, may be enough to create such a risk. (See Constantinescu v.
Conejo Valley Unified School Dist. (1993) 16 Cal.App.4th 1466, 1476
[dangerous condition created by “amalgam of factors” including the use of
low lying curb despite lack of any obligation on the part of the city to provide
curbs high enough to prevent motorists from driving up onto sidewalk];
Curreri v. City & County of San Francisco (1968) 262 Cal.App.2d 603, 611
[same].)
Although we conclude that the trial court exceeded its discretion in
sustaining the defendants’ demurrers without leave to amend, we reach this
conclusion somewhat reluctantly. Because we rely on representations made
for the first time on appeal, our disposition on appeal should not be taken to
reflect negatively on the careful consideration the trial court gave to this
pleading matter as presented on the defendants’ latest round of demurrers.
We hold only that since, under the liberal standard that governs requests
for pleading amendments, there appears to us to be a reasonable possibility
that further amendments might state a legally viable “amalgam of factors”
theory of liability, N.E. should be given another opportunity to replead. We
are not suggesting that she need only parrot what we have said, legally,
about common hazards arising in combination; more factual particulars are
necessary, which may require more investigation or even the retention of an
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expert. Depending on how N.E. responds, we too may be prepared to
conclude that this further opportunity to amend should be her last.
III. DISPOSITION
We affirm the trial court’s ruling that the second amended complaint
fails to state a cause of action, but reverse the denial of leave to amend and
remand with directions to grant N.E. leave to file a third amended
complaint. The parties shall bear their respective costs on appeal.
STREETER, Acting P. J.
WE CONCUR:
GOLDMAN, J.
SWEET, J.*
* Judge of the Marin Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
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